Coindesk.com notes that Bitcoin entrepreneur Roger Ver was denied a non-immigrant visa for the third time this week. He was planning to speak at the North American Bitcoin Conference in Miami later this month.

Interestingly, Mr. Ver was denied under Section 214(b) of the Immigration and Nationality Act (INA) which states, “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case – that the applicant only intends to visit America for a short duration and maintains ties abroad that would compel them to leave the U.S. at the end of the temporary stay. Consular officers have a substantial say in adjudicating each applicant to determine whether that applicant has overcome the requirements of this section.

It is strange then, to say the least, that Mr. Ver was denied by the U.S. Consular General, Barbados, under a regulation that requires he prove his intent to depart the U.S. when he appears to have already done so. While the Coindesk article does note that Mr. Ver’s “parents, siblings and extended family all live in the US“, his decision last year to legally relinquish his U.S. Citizenship (at an apparent cost of $350,000, which he paid into the U.S. treasury) his decision to take up citizenship of a different country, his having resided mainly abroad for the past 9 years – these facts objectively constitute clear, material and probative evidence establishing an intent to depart the U.S. after a short visit.

While Mr. Ver can attempt to enter the US in the future (a denial under section 214(b) is not permanent) chances for subsequent approval diminish with each denial. Meaning: the fourth time is probably not going to be the charm.

While it’s a good time for us to revisit INA 214(b) – an overbroad, overused “hatchet” which has kept many a qualified individual out of the U.S, it appears possible that Mr. Ver’s visa denial is actually predicated upon other (read: political) grounds.

H1B demographics india.jpg Category:Immigration to the United States charts and graphs (Photo credit: Wikipedia)

Good news: USCIS’ operations though the Federal Government Shutdown are expected to continue because it is funded by sources other than appropriated funds (read: H-1B and other USCIS filing fees). In fact, this funding is so substantial that USCIS expects to send home only 353 of 12,558 employees during the temporary shutdown.

Consulates remain operational at this point.

Unfortunately, the DOL ETA will not process any employment based labor certifications during the shut down. The PERM PLC website is also down, as is iCert.

Under the automatic revalidation provision of immigration law, certain temporary visitors holding expired nonimmigrant visas who seek to return to the U.S. may be admitted at a U.S. port of entry by Customs and Border Protection (CBP), if they meet certain requirements, including, but not limited to the following:

A nonimmigrant who departed the U.S. for brief travel to Canada, Mexico, or an adjacent islands (for F and J nonimmigrant) for thirty days or less;

Nonimmigrant who have changed their nonimmigrant status (for F and J nonimmigrant) to another nonimmigrant status through U.S. Citizenship and Immigration Services (USCIS) and has a valid (unexpired) Form I-94, Arrival-Departure Record, endorsed by DHS can travel to Canada, Mexico or an adjacent island for thirty days or less.
Nonimmigrant who is eligible to re-enter the U.S. pursuant to the authority of automatic revalidation is not able to benefit from the automatic revalidation process if the passport of the nonimmigrant reflects evidence that while in a contiguous territory or on an adjacent island the nonimmigrant applied for a new visa and is pending a decision or has been denied a new visa application.

For more information about automatic revalidation provisions and reentry to the U.S. visit the Automatic Revalidation Fact Sheet on page 18 of the Carrier Information Guide on CBP.gov. Note: Carrier Information Guide is currently being updated to accurately reflect the countries listed below.

Nationals of Cuba, Iran, Sudan and Syria are not eligible for automatic revalidation of an expired visa.

In March of 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP) which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. Following the success of the IWP, as part of continuing efforts to streamline the visa process, and to meet increased visa demand in India, the U.S. Mission is pleased to announce an expansion of the IWP. We expect this expansion to benefit thousands of visa applicants in India.

Visa operations at the U.S. Consulate in Chennai have been suspended this week, September 17-21, 2012. Updates on status will be available at the Consulate’s website. Anyone with a legitimate travel emergency is asked to contact the Consulate at chennaiexp@state.gov .

The United States Embassy in India today announced it is implementing a new visa processing system throughout India that will further standardize procedures and will simplify fee payment and appointment scheduling through a new website at www.ustraveldocs.com/in. Minister Counselor for Consular Affairs, Julia Stanley, announced at a press conference here today that beginning September 26, 2012 U.S. visa applicants will be able to pay application fees via Electronic Fund Transfer (EFT) or with their mobile phones. They can also pay in cash at more than 1,800 Axis bank branches.

For the first time, applicants will be able to schedule their appointments online or by phone. The new system will also allow companies and travel agents to purchase multiple fee receipts for group travel, and it accommodates the scheduling of group and emergency appointments.

INTERVIEW WAIVER PROGRAM

This pilot program permits consular officers to waive interviews for qualified nonimmigrant applicants worldwide who are renewing their visa within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa.

Embassies and consulates have been instructed to begin implementing this pilot program immediately.

This pilot does not entitle any applicant to a waiver of personal appearance. Consular officers will retain the authority to interview any applicant who they determine requires a personal appearance.

Section 221(g) of the INA allows consular officers to issue a temporary refusal of a visa petition in cases where an otherwise eligible visa applicant is missing a specific document, or in case where a consular officer concludes that additional security clearance measures are warranted. Consular officers utilize 221(g) to allow applicants the opportunity to supplement their applications to overcome a visa denial. Once the deficiency is satisfied, or the concern resolved, 221(g) refusal is “overcome” and the visa may be issued.

In practice, the following are some situations that often give rise to a 221(g) refusal:

1. Additional support documents are required, such as proof of local employment;

2. An applicant is employed in a field listed on the Technology Alert List and the consular officer requests a Visas Mantis Security Advisory

Opinion (“SAO”). (Common in India, China and elsewhere where applicants are advised that their applications require “administrative processing.”)

3. The consular officer requests an Advisory Opinion from the Visa Office on the applicability of one of the statutory grounds of inadmissibility.

4. There are no empty visa pages in the applicant’s passport, or the applicant’s photograph is of bad quality.

5. Applicant’s PIMS profile has not been updated.

A consular officer, upon refusing an application under 221(g), will commonly provide the applicant with a refusal letter. However, it is possible that an applicant may be temporarily refused under 221(g) and not know it.

The use of 221(g) is growing extremely common; the US Department of State has suggested that such refusals are overused by consular officers. According to the Report of the Visa Office, in FY 2008 a staggering 589,000 221(g) refusals were issued against nonimmigrant visa applications. About 87% of these were eventually overcome and visas were issued.

221(g) impacts subsequent visa applications because a client must indicate yes to the DS form question, “Have you ever been refused a US Visa?”. Even a 221(g) that was caused by something as insignificant as a PIMS database issue is still considered, technically, a refusal.

A National Foundation for American Policy report which analyzed official data from USCIS revealed evidence that Adjudicating Officers have dramatically increased the issuance of denials and requests for evidence in L-1 (intra-company transferees) and H-1B cases over the last four years, in spite of the fact that there were no changes in law or regulations during the same period. USCIS Officers have, over the last four years, arbitrarily & en masse, increased the difficulty of obtaining H-1B or L-1 status, most particularly for Indian applicants.

Again, this is so despite no new laws or regulations authorizing a change in adjudication protocols. It may be therefore objectively stated that this data is prima facia evidence that Indian IT professionals and their employers have been, over a sustained period, selected for profiling and targeting profiled and targeted as the primary victims of this and other related USCIS “policy changes” since 2008, along with a widely noted increase in visa denials/221(g) queries for H-1 & L-1 non-immigrants at U.S. Consulates [on a related note; see the new “H-1B Beneficiary attestation” evidently now in use at the U.S. Consulate, Hyderabad, ostensibly to be used in justifying mass visa denials for H-1B IT Consultants with end-client job sites].

By way of background, the primary basis for U.S. Immigration law today is the Immigration and Nationality Act of 1965 (“INA”). The INA is tremendously significant because it reversed America’s then (longstanding) racist Immigration policies, including the Page Act of 1875, the 1882 Chinese Exclusion Act and the “National Origins Formula” which had effectively limited immigration from Mediterranean Europe, Latin America and Asia to token levels so as not to change America’s “national character”. It is then truly ironic that adjudicators at the USCIS and U.S. Consulates appear to have been granted unchecked autonomy in systematically countermanding both the INA and its underlying legislative intent by effectively re-proportioning visas or “spots” to countries other than India.

Indians utilize a large number of available H-1B and L-1 numbers, however, they cannot be legally denied on that basis. On October 3, 1965, on the occasion of the signing of the INA, at the foot of the Statue of Liberty, President Lyndon B. Johnson declared that it was a “cruel and enduring wrong” that “…Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. [The old quota based Immigration] system violated the basic principle of American democracy–the principle that values and rewards each man on the basis of his merit as a man…”

Contrast these words with the following excerpts from the NFAP report:

“Companies believe that denials either at U.S. Citizenship and Immigration Services or at consulates, particularly involving Indian nationals, share the common attribute of new (unwritten) arbitrary standards that go beyond the statute and regulations.

…

Country specific data on new (initial) L-1B petitions indicate U.S. Citizenship and Immigration Services is more likely to deny a petition from an Indian-born professional than nationals of other countries. The denial rate for Indian-born applicants for new L-1B petitions rose from 2.8 percent in Fiscal Year 2008 to 22.5 percent in FY 2009, a substantial increase that resulted in many employers being unable to transfer their employees into the United States to work on research projects or serve customers. In comparison, the denial rate for new L-1B petitions for Canadians rose from 2.0 percent in FY 2008 to only 2.9 percent in FY 2009. Illustrating the abrupt change, U.S. Citizenship and Immigration Services denied more L-1B petitions for new petitions for Indians in FY 2009 (1,640) than in the previous 9 fiscal years combined (1,341 denials between FY 2000 and FY 2008).

…

Concern that L-1B petitions for Indians have been singled out might be alleviated if the data showed other countries have experienced similar increases in the rates of denial for L-1B petitions with U.S. Citizenship and Immigration Services. However, the data show that while other foreign nationals experienced an increase in denial rates for new L-1B petitions starting in FY 2009, those denial rate increases were far lower than for Indian nationals. L-1 visa issuance declined at U.S posts in Indian in FY 2011 but rose overall for the rest of the world.”

The below wording was found in a new H-1B Beneficiary attestation in use by the U.S. Consulate, Hyderabad. H-1B workers attest the following only if they are to be engaged by a (presumably IT) consulting firm.

—————

US CONSULATE GENERAL, HYDERABAD, INDIA

DATE

I, _____________ born on _____________ in _____________ state that:

I have read and understand the Wilberforce pamphlet.

The petitioner is _____________

The petitioner supervisor is _____________ with a principle location of _____________

The number of petitioner employees at the work site is_____________

My primary work location is _____________

The end-client for my work is _____________

The end-client supervisor is _____________

The _____________ supervisor is located ‘offsite’ and is not regularly employed for the predominant part of the workday/work week/work month at the site where I work.

Contact with the _____________ supervisor is limited to weekly visits to the _____________ office and occasional Petitioner supervisor visits to end-client work sites.

The principle day-to-day management is conducted by the client, _____________

The client, _____________, provides the tools and equipment (including any software and operating environment) needed for the job.

The petitioner _____________ does not provide any primary/key proprietary tools or applications for the work.

I produce a product related to Petitioner’s line of business.

The client, _____________ makes the main development and product decisions for the end product I produce.

I understand that any false, knowingly incorrect, or misleading statements made to a consular or immigration official may result in a permanent ineligibility for a visa to the United States of America.

The Department of Homeland Security (DHS) has announced substantial changes to our immigration system by way of a two prong strategy aimed at retaining highly skilled immigrants and increasing investment in the U.S. by foreign investors, reports U.S. Immigration lawyer Ashwin Sharma. The DHS announced this week that it would add to or modify established immigration processes so as to further President Obama’s commitments to:

1. The Creation of a “Startup Visa,”

2. Strengthening the H-1B nonimmigrant professional program,

and

3. “Stapling” green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields, and make improvements to existing programs.

The DHS hopes that these and other proposed changes will attract and retain highly-skilled immigrants.

Ashwin Sharma, a member of the American Immigration Lawyers Association, applauds the DHS’s actions and calls for parallel changes within the U.S. Department of State’s Consular Posts. “We urgently require these changes and more, particularly with regard to professionals and investors. It has never been more difficult for tourists, professionals or investors to legally enter this country and contribute to the American economy. Our various immigration departments and agencies are interpreting the same laws differently. The U.S. Consulates, for example, appear to be ignoring specific Congressional mandates. Furthermore, there appears to be little communication between DHS and the Consulates which results in the inexplicable penalization of valuable immigrants.”

Mr. Sharma continued, “For example, to fill a specialty occupation with an H-1B professional worker, a U.S. employer may pay up to $5,500 just in government filing fees, provide hundreds or thousands of pages to DHS in support, make applicable attestations, answer up to one or two DHS queries and remain ready for a random on-site inspection. However, even after obtaining an approval subsequent to this rigorous and expensive adjudication process, which will have to be repeated each time an employer files a case, an employer may learn that their H-1B employee(s) are barred from reentering the U.S. after a short visit abroad. These employee(s) may be held abroad for months or years, away from their family, home and of course, job. U.S. employers of those encountering such a situation often lose contracts, profits and incur harm to their corporate reputation.”

“A U.S. Consular officer may deny entry to the U.S. to anyone, even someone with a DHS approved H-1B. Such a denial follows, generally, a two to five minute interview in which a Consular officer quickly flips through the same documentation previously scrutinized by the DHS. Presently, the main reason for such denials for H-1B IT workers appears predicated on Consular Officers’ outdated interpretation of what constitutes an “employee-employer” relationship within the H-1B context. This definition however, has been substantially modified by DHS and DHS Chief Napolitano since the original, restrictive definition was announced in January of 2010. Unfortunately, no one seems to have issued the revisions to the Consulates. Further, it appears that a substantial percentage of such H-1B visa denials may be improper. This is because the Foreign Affairs Manual (“FAM”) guidelines for Consulates state that a U.S. Consular Officer may only deny a case on very specific grounds, that is, the discovery of new negative facts not previously known to DHS in the course of DHS’ adjudication. For example, 9 FAM 41.53(d) states that,”

“…The consular officer must suspend action on this alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved.”

Mr. Sharma highlighted a selection in the FAM which indicates a Consular officer,

“…must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”

Mr. Sharma noted that, “The FAM repeatedly emphasizes that DHS, the original adjudicator of the petition, should be given greater deference than Consulates in reviewing the qualifications of a particular alien for “H” status, and that Consulates should rely on DHS expertise, and not their own. This is not only so because Congress explicitly and implicitly assigned “responsibility” and “authority” of making such a decision to DHS but also because of the complexity of H petitions in general.”

“By mandating a preliminary petition process, Congress placed responsibility and authority with Department of Homeland Security (DHS) to determine whether the alien meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” 9 FAM 41.53 N2.1 Department of Homeland Security (DHS) Responsible for Adjudicating H Petitions”

Mr. Sharma stated, “Another unambiguous demand for Consulates’ deference to DHS is contained in 9 FAM 41.53 N2.2, under the heading entitled, “Approved Petition Is Prima Facie Evidence of Entitlement to H Classification”. Subsection (a) of this section makes it abundantly clear that the Consulate or Consular officer should not make any adverse decision on an H-1B petition approved by DHS, unless the Consulate discovers (presumably material) information during the visa interview that was not available to DHS,”

“You do not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.”

Mr. Sharma emphasized that it is “only if the Consulate discovers material not known to the DHS is it advised to issue a request for evidence in the following note (b),”

“If information develops during the visa interview (e.g., evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. “

Mr. Sharma provided another example in 9 FAM 41.53 N2.3, “Referring Approved H Petition to Department of Homeland Security (DHS) for Reconsideration” which he stated “…reemphasizes an often ignored directive: that Consular officers,”

“… should consider all approved H petitions in light of these Notes, process those applications that appear to be legitimate, identify those applications which require local investigation, and identify those petitions that require referral to the approving U.S. Citizenship and Immigration Services (USCIS) office for reconsideration. Refer petitions to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS. You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”

Mr. Sharma concluded, “It is highly improbable that freshly discovered documentary evidence, both material in nature and unavailable to DHS at the time of original adjudication, could be discovered during the course of a typically rapid Consulate interview for the majority of H-1B petitions that have been denied recently. Visa applicants and their employers obey the law, ‘wait their turn’ and pay the requisite fees but are often those most ill treated by our system. These individuals are suffering harm because of the carelessness, ignorance and a lack of communication within and among our Immigration agencies, particularly at the Consular level. This may be one of the major reasons why our economy suffers; tourists, students, investors and professionals are increasingly selecting emigration to Australia and Canada over the U.S. and its unpredictable, almost schizophrenic immigration system. I welcome the DHS’ proposed changes but they will have little impact if the U.S. Department of State’s Consulates continue to ignore them.”

Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates

AGENCY: Bureau of Consular Affairs, State.

ACTION: Proposed rule.

—————————————–

SUMMARY: This rule proposes adjustments in current fees for consular services. The Department of State is adjusting the fees in light of an independent cost of service study’s (“CoSS”) findings that the U.S. Government is not fully covering its costs for providing these services under the current fee structure. The primary objective of the adjustments to the Schedule of Fees is to ensure that fees for consular services reflect costs to the United States of providing the services.

DATES: Written comments must be received on or before 30 days from February 9, 2010.

ADDRESSES: Interested parties may submit comments by any of the following methods:

Persons with access to the Internet may view this notice and submit comments by going to the regulations.gov Web site at: http:/ /www.regulations.gov/index.cfm.

The proposed rule makes changes to the Schedule of Fees for Consular Services of the Department of State’s

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Bureau of Consular Affairs (“Schedule of Fees” or “Schedule”), as well as a conforming amendment to 22 CFR 51.51(d). As discussed below, full cost recovery is the basis on which consular fees are ordinarily set and collected. In line with this principle, the Department has reviewed its current consular fees based on a recently completed CoSS, and decided to implement a number of changes to the Schedule of Fees.

Two of these changes are particularly noteworthy. First, the proposed rule establishes a tiered application processing fee for immigrant visas depending on the category, as determined by the cost to the U.S. Government of processing that particular category of visa. Second, the proposed rule increases the adult passport book application fee from $55 to $70 to make this fee more consistent with full cost recovery. Moreover, certain consular services performed for no fee are included in the Schedule so that members of the public will be aware of significant consular services provided by the Department for which they will not be charged.

Nonimmigrant visa fees, including fees for Machine-Readable Visas (MRVs) and Border Crossing Cards (BCCs), have been modified pursuant to a separate rule published December 14, 2009. These modified fees are reflected in Item 21 of the Schedule below.

What Is the Authority for This Action?

The Department of State derives the general authority to set the amount of fees for the consular services it provides, and to charge those fees, from the general user charges statute, 31 U.S.C. 9701. See, e.g., 31 U.S.C. 9701(b)(2)(A) (“The head of each agency * * * may prescribe regulations establishing the charge for a service or thing of value provided by the agency * * * based on * * * the costs to the Government * * *.”). As implemented through Executive Order 10718 of June 27, 1957, 22 U.S.C. 4219 further authorizes the Department to establish fees to be charged for official services provided by U.S. embassies and consulates. Other authorities allow the Department to charge fees for consular services, but not to determine the amount of such fees, as the amount is statutorily determined. Examples include: (1) The $13 fee for machine-readable BCCs for certain Mexican citizen minors, Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Public Law 105-277, 112 Stat. 2681-50, Div. A, Title IV, sec. 410(a) (reproduced at 8 U.S.C. 1351 note); and (2) the reciprocal nonimmigrant visa issuance fee, 8 U.S.C. 1351.

A number of other statutes address specific fees relating to passport processing, immigrant and nonimmigrant visa processing, and overseas citizens services. For example, 22 U.S.C. 214 authorizes the Department to charge passport application and execution fees. Another law authorizes the Department to establish a fee for the processing of applications for “diversity visas,” to recover the costs of the “visa lottery” program conducted under Immigration and Nationality Act (INA) sections 203 and 222, 8 U.S.C. 1153, 1201. See Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, 110 Stat. 3009, Div. C, Title VI, Sec. 636 (reproduced at 8 U.S.C. 1153 note). Only those applicants who register in the lottery and are selected may apply for a visa, and those who choose to apply must pay the fee; the fee incorporates the costs to the Department of administering the lottery program. Id. Another statute authorizes the Department to collect and retain surcharges on passports and immigrant visas to help pay for efforts to enhance border security. See 8 U.S.C. 1714. While these fees were originally frozen statutorily at $12 and $45 respectively, subsequent legislation authorized the Department to amend these amounts administratively, provided the resulting surcharge is “reasonably related to the costs of providing services in connection with the activity or item for which the surcharges are charged.” Department of State Authorities Act of 2006, Public Law 109-472, 120 Stat. 3554, sec. 6(b)(1) (reproduced at 8 U.S.C. 1714 note). Furthermore, several statutes deal with fees for nonimmigrant visas, including the issuance fee statute described above, 8 U.S.C. 1351 (establishing reciprocity as the basis for the nonimmigrant visa issuance fee), and the MRV and BCC fees modified in the proposed rule published in the Federal Register on December 14, 2009.

Certain persons are exempted by law or regulation from paying specific fees or are expressly made subject to a special fee regime by law. These are noted in the Schedule of Fees below. They include, for instance, several exemptions from the nonimmigrant visa application fee for certain individuals who engage in charitable activities or who qualify for diplomatic visas. See 8 U.S.C. 1351; 22 CFR 41.107(c). Certain Iraqi and Afghan nationals are similarly exempt from paying an immigrant visa application fee. See National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, 122 Stat. 3, Div. A, Title XII, sec. 1244(d) (reproduced at 11 U.S.C. 1157 note); Omnibus Appropriations Act, 2009, Public Law 111-8, 123 Stat. 524, Div. F, Title VI, sec. 602(b)(4) (reproduced at 8 U.S.C. 1101 note). As another example, qualifying Mexican citizen minors pay a special BCC fee well below what it costs the Department to process such cards. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Public Law 105-277, Div. A, Title IV, sec. 410(a), reproduced at 8 U.S.C. 1351 note.

While for most consular fees, the funds collected must be deposited into the Treasury, various statutes permit the Department to retain the fees it collects. Among these are the following: (1) The MRV and BCC fees, Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Public Law 103-236, Title I, sec. 140(a)(2), 112 Stat. 2681-50 (reproduced at 8 U.S.C. 1351 note); (2) the passport expedite fee, Department of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995, Public Law 103-317, 108 Stat. 1724, Title V (reproduced at 22 U.S.C. 214 note); (3) the passport and immigrant visa security surcharges, 8 U.S.C. 1714; (4) the Western Hemisphere Travel Initiative (WHTI) surcharge, which is imbedded in the passport book and passport card application fees, 22 U.S.C. 214(b)(1); (5) the diversity visa lottery fee Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, Div. C, Title VI, sec. 636 (reproduced at 8 U.S.C. 1153 note); (6) the fee for an affidavit of support, Consolidated Appropriations Act, 2000, Public Law 106-113, 113 Stat. 1501, Div. A, Title II, Sec. 232(a) (reproduced at 8 U.S.C. 1183a note); and (7) the fee to process requests from participants in the Department’s Exchange Visitor Program for a waiver of the two-year home-residence requirement, 22 U.S.C. 1475e. The Department also has available to it a portion of certain fraud prevention and detection fees charged to applicants for H- and L- category visas. 8 U.S.C. 1356(v)(2)(A).

Why Is the Department Adjusting Fees at This Time?

With certain exceptions–such as the reciprocal nonimmigrant visa issuance fee and the reduced Mexican citizen minor BCC fee described above, as well as a congressionally mandated $1 surcharge on all nonimmigrant visas, see William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 5044, Title II, sec. 239 (reproduced at 8 U.S.C. 1351 note)–the Department of

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State generally sets consular fees at an amount calculated to achieve recovery of the costs to the U.S. Government of providing the consular service, in a manner consistent with general user charges principles, regardless of the specific statutory authority under which the fees are authorized. As set forth in OMB Circular A-25, as a general policy, each recipient should pay a reasonable user charge for government services, resources, or goods from which he or she derives a special benefit, at an amount sufficient for the U.S. Government to recover the full costs to it of providing the service, resource, or good. See OMB Circular No. A-25, sec. 6(a)(2)(a). The OMB guidance covers all Federal Executive Branch activities that convey special benefits to recipients beyond those that accrue to the general public. See id., sections 4(a), 6(a)(1).

While fees are thus set in accordance with full cost recovery, there are limited circumstances, such as the passport book and card application fees for minors, in which costs are allocated to related fees or the Department charges a fee that is lower than the cost of providing the service. This may be done in order to account for statutory requirements or the potential impact on the public of setting those fees at a higher level.

The Department reviews consular fees periodically to determine each fee’s appropriateness in light of the OMB guidance. The Department has made the changes set forth in this proposed Schedule of Fees accordingly. In line with this guidance, the Department contracted for an independent CoSS, which conducted its work from August 2007 through June 2009. The CoSS used an activity-based costing model to determine the current direct and indirect costs to the U.S. Government associated with each consular good and service the Department provides. The contractor and Department staff surveyed and visited domestic and overseas consular sites handling a representative sample of all consular services worldwide. The study identified the cost of the various discrete consular goods and services, both direct and indirect, and the study’s results formed the basis of the changes herein proposed to the Schedule. Detailed information concerning the CoSS’s methodology is available from the Bureau of Consular Affairs.

In situations where services are provided with enough frequency to develop a reliable estimate of the average time involved, the Schedule generally sets a flat service fee. In situations that require services to be performed away from the office or during after-duty hours, the Department calculates the fee based on a consular “hourly rate”; this rate, which appears at Item 75 on the Schedule below, represents the cost per hour or part thereof/per consular employee. Whether by flat fee or fee determined by hourly rate, the fees the Department charges are designed to recover–at most–the full costs the Department expects the U.S. Government to incur over the period the Schedule will be in effect. The Department based all fees in the Schedule on projected Fiscal Year 2010 workloads.

As a result of the CoSS’s findings and the Department’s analysis of these findings, the Department is hereby proposing adjustments to the Schedule of Fees. As noted above, adjustments to nonimmigrant visa fees, including those for BCCs, have been promulgated under a separate rule published December 14, 2009.

The last broad set of amendments to the Schedule occurred in 2005, though the Department has made piecemeal amendments to it since that time. Some fees, including items 31(a) and (b) and 35(d), are set by the Department of Homeland Security and were most recently updated by that agency on July 30, 2007. Changes to the current Schedule of Fees are discussed below. All CoSS estimates discussed below are based on projected workload for Fiscal Year 2010, and fees have been rounded to make them easier to collect, especially when converting from foreign currencies, which are most often used when paying for fees at posts abroad. This proposed rule also makes a conforming amendment to 22 CFR 51.51(d), which establishes the surcharge on the filing of each passport application in order to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638 (reproduced at 8 U.S.C. 1185 note).

Passport Book Application Services

The Department is increasing the application fee for a passport book for an adult (age 17 and older) from $55 to $70. The application fee for a passport book for a minor (age 16 and younger) will remain at $40. The CoSS estimated that the cost of processing first-time passport applications for both adults and minors is $105.80 based on a projected FY10 workload of 11.9 million. This cost includes border security costs covered by the passport book security surcharge, discussed immediately below. Because a minor passport book has a validity of just five years, in contrast with the ten-year validity period of an adult passport book, the Department has decided to leave the minor passport book application fee at $40, and allocate the remainder of the cost of processing minor passport book applications to the adult passport application fee.

As described in 22 CFR 51.51(d), this fee incorporates the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (reproduced at 8 U.S.C. 1185 note). This portion of the application fee, which is embedded within the fee and not charged separately or separately itemized in the Schedule of Fees, has increased from $20 to $22 per application based on increased costs related to new passport agencies serving border communities.

Passport Book Security Surcharge

The Department is increasing the passport book security surcharge from $20 to $40 in order to cover the costs of increased border security which includes, but is not limited to, enhanced biometric features in the document itself. The passport book security surcharge is the same for adult passport books and for minor passport books.

Additional Passport Visa Pages

In the past, the Department provided extra pages in a customer’s passport, to which foreign countries’ visas may then be affixed, at no charge. The CoSS found that the cost of the pages themselves, of having the pages placed in the book in a secure manner by trained personnel, and of completing the required security checks results in a cost to the U.S. Government of $82.48 based on a projected FY10 workload of 218,000. Therefore, the Department will charge $82 for this service.

Passport Card Application Services

The CoSS projected that the cost of processing first-time applications for adult and minor passport cards will be $77.59 based on an FY 2010 workload projection of 1.56 million cards. Adjudication costs associated with a passport card are the same as those associated with a passport book. Nevertheless, the card is intended to be a substantially less expensive document than the passport book, for the convenience of citizens who live close to land borders and cross back and forth frequently. Therefore, the Department has decided to raise the adult passport card application fee from $20 to just

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$30, and the minor passport card application fee from $10 to just $15.

As described in 22 CFR 51.51(d), this application fee incorporates the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (reproduced at 8 U.S.C. 1185 note). This portion of the fee, which is embedded within the fee and not charged separately or separately itemized in the Schedule of Fees, has increased from $20 to $22 for the adult passport card and from $10 to $15 for the minor passport card, and is based on increased costs related to new passport agencies serving border communities.

File Search and Verification of U.S. Citizenship

When an applicant for a passport book or passport card does not present evidence of citizenship, the Department must search its files to attempt to discern his or her U.S. citizenship. The Department is raising the fee for this service from $60 to $150 based on the cost of providing the service, and notes that applicants can avoid paying this fee by providing adequate citizenship documentation when applying for a passport rather than to request a costly, time-intensive Department file search.

Application for Consular Report of Birth Abroad of a Citizen of the United States

The CoSS found that the cost of accepting and processing an application for a Consular Report of Birth Abroad of a Citizen of the United States is $197.28 based on an FY10 workload projection of 80,000 applications. The Department has decided to raise the fee from $65 to $100, still significantly less than cost, based on its view that too high a fee might deter U.S. citizen parents from properly documenting the citizenship of their children at birth, a development the Department feels would be detrimental to national interests.

Documentation for Renunciation of Citizenship

The CoSS demonstrated that documenting a U.S. citizen’s renunciation of citizenship is extremely costly, requiring American consular officers overseas to spend substantial amounts of time to accept, process, and adjudicate cases. A new fee of $450 will be established to help defray a small portion of the total cost to the U.S. Government of documenting the renunciation of citizenship.

Death and Estate Services

The CoSS found that the average cost of assisting U.S. citizens in making arrangements for a deceased non-U.S. citizen family member abroad is $388.19 based on an FY 2010 workload projection of 50,000 cases. The Department had previously charged a fee of $265 per hour, the then-applicable fee for consular time (discussed below), plus expenses. The Department has decided to set the new fee for death and estate services at significantly lower than costs–$200 plus expenses– in order to assist bereaved families.

Immigrant Visa Application Processing Fee

The Department is changing the fee for processing an immigrant visa from $355 for all immigrant visas, to a four-tiered fee based on CoSS estimates for each discrete category of immigrant visa, as applications for certain applications cost more to process than others. Accordingly, the application fee for a family-based (immediate relative and preference) visa (processed on the basis of an I-130, I-600 or I-800 petition) will be $330.

The application fee for an employment-based visa (processed on the basis of an I-140 petition) will be $720. Other immigrant visa applications (including for diversity visa applicants, I-360 self- petitioners, special immigrant visa applicants and all others) will have a fee of $305. As noted above, certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying a processing fee. National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, Div. A, Title XII, Sec. 1244(d) (reproduced at 11 U.S.C. 1157 note); Omnibus Appropriations Act, 2009, Public Law 111-8, Div. F, Title VI, sec. 602(b)(4) (reproduced at 8 U.S.C. 1101 note).

Immigrant Visa Security Surcharge

The Department is increasing the immigrant visa security surcharge, which all applicants except those statutorily exempted must pay, from $45 to $74 to cover increased security costs as determined by the CoSS, including the costs of the enhanced security screening requirements associated with fingerprint collection which were previously included in the immigrant visa application processing fee.

Diversity Visa Lottery Fee for Immigrant Visa Application

The Department is raising the fee paid by winners of the Diversity Visa lottery who apply for immigrant visas from $375 to $440 based on CoSS estimates for an FY 2010 workload projection of 81,000 applications. The Department has authority to collect the surcharge only from persons who are selected through the lottery process and therefore qualify to apply for a Diversity Visa, and to set it at a level sufficient to cover the entire cost of running the lottery. Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, Div. C, Title VI, Sec. 636 (reproduced at 8 U.S.C. 1153 note).

Affidavit of Support Review

The Department charges the affidavit of support review fee for all affidavits of support reviewed at the National Visa Center in connection with an application for an immigrant visa. The purpose of the review is to ensure that each affidavit is properly completed before the National Visa Center forwards it to a consular post for adjudication. The Department is increasing the fee from $70 to $88 to reflect the increase in the cost of providing this service to immigrant visa applicants.

Determining Returning Resident Status

The CoSS found that determining the status of persons who claim to be legal permanent residents of the United States but do not have documentation to prove this fact, has become less costly than before due to advances in automation, making it easier to verify U.S. immigration status. As such, the Department will lower the fee from $400 to $380.

Providing Documentary Services

The CoSS found the cost to the U.S. Government of providing documentary services overseas is $76.36 per service based on a projected FY 2010 workload of 380,000 services. These are primarily notarial services, certification of true copies, provision of documents, and authentications. However, the Department is raising these fees only from $30 to $50, lower than cost, in order to minimize the impact on the public.

The CoSS found that the cost to the U.S. Government of processing letters rogatory and Foreign Sovereign Immunities Act judicial assistance cases is $2,274.59 based on a projected FY 2010 workload of 1400 services. The Department will accordingly raise the fee for these services to $2,275.

Taking Depositions or Executing Commissions To Take Testimony

Several services fall under this heading, and fees for three of the

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services will be raised as a result of the CoSS’s estimates of costs to the U.S. Government. The new fees appear in the Schedule below.

Consular Time Charges

The Department previously charged a consular time fee of $265 per hour, per employee. The CoSS estimated that consular time charges for services performed away from the office or outside business hours only costs $231 per hour, per employee. Therefore, the Department will lower this fee to $231 per hour.

When Will the Department of State Implement This Proposed Rule?

The Department intends to implement this proposed rule, and initiate collection of the fees set forth herein, as soon as practicable following the expiration of the 30-day public comment period following this proposed rule’s publication in the Federal Register, and after the Department has had the opportunity to fully consider any public comments received.

Regulatory Findings

Administrative Procedure Act

The Department is publishing this rule as a proposed rule, with a 30-day provision for public comments.

Regulatory Flexibility Act

The Department, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6). This rule raises the application and processing fee for passports, immigrant visas and American citizen services. The Department of State estimates that the agency will process 16,000 total employment-based immigrant visa applications, all of which fall into the E-1, E-2, E-3, E-4, and E-5 categories. (Note: The Department of Homeland Security processes domestic adjustment of status for approximately 90 percent of all employment-based immigrants; cases processed domestically do not pay Department of State fees.) The issuance of some “E” category employment-based immigrant visas may be contingent upon approval by DHS of a petition filed by a United States company, and these companies pay a fee to DHS to cover the processing of the petition. The amount of the petition fees that are paid by small entities to DHS is not controlled by the amount of the visa fees paid by individuals to the Department of State. The visa itself is sought and the application processing fees are paid for by an individual foreign national overseas who seeks to immigrate to the United States. The Department of State does not track applications for employment- based visas by the size and nature of the petitioning businesses, and therefore cannot identify the share of this impact on the small businesses versus large businesses. While some employers may choose to reimburse application costs, small businesses are not required by law to reimburse the individuals, and therefore no small businesses will be impacted. Additionally, small entities may pay judicial services fees if required for legal matters with foreign companies, but in very limited circumstances and small numbers. For instance, worldwide in FY 2009, embassies and consulates arranged only 123 depositions and processed only 156 letters rogatory.

Unfunded Mandates Act of 1995

This rule will not result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501-1504.

Executive Order 13175–Consultation and Coordination With Indian Tribal Governments

The Department has determined that this rulemaking will not have Tribal implications, will not impose substantial direct compliance costs on Indian Tribal governments, and will not pre-empt Tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996, since it will result in an annual effect on the economy of $100 million or more. See 5 U.S.C.804(2).

Executive Order 12866

OMB considers this rule to be an economically significant regulatory action under Executive Order 12866, section 3(f)(1), Regulatory Planning and Review, Sept. 30, 1993 because it is likely to have an annual effect on the economy of $100 million or more. 58 FR 51735. This rule is necessary in light of the Department of State’s CoSS finding that the cost of processing passports and immigrant visas and of providing other consular services has generally increased since the fees were last set. The Department is setting the fees in accordance with 31 U.S.C. 9701 and other applicable authority, as described in more detail above. See, e.g., 31 U.S.C. 9701(b)(2)(A) (“The head of each agency [hellip] may prescribe regulations establishing the charge for a service or thing of value provided by the agency [hellip] based on [hellip] the costs to the Government.”). This regulation generally sets the fees for passports, immigrant visas and consular services at the amount required to recover the costs associated with providing this service.

Accordingly, this rule has been submitted to OMB for review.

Details of the proposed fee changes are as follows:

(SEE PDF VERSION FOR TABLE)

The Department of State does not anticipate that demand for passport, immigrant visa, and other services affected by this rule will change significantly due to these fee changes, and welcomes public comment on that expectation.

With regard to immigrant visas, many categories are numerically capped; these caps artificially limit workload and keep current demand fairly stable. In FY 2009, the Department issued all available immigrant visas in employment-based categories (capped at 140,000 including adjustments of status processed domestically by the

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Department of Homeland Security). In FY 2009, the Department issued 96 percent of the immigrant visas available under the Diversity Visa program (capped at 50,000 including adjustments of status processed domestically by the Department of Homeland Security). Also in FY 2009, the Department issued 96 percent of the immigrant visas available for family-preference categories (capped at 226,000 including adjustments of status processed domestically by the Department of Homeland Security). When fewer visas were issued than were available under the numerical cap, it was generally due to administrative processing issues rather than lack of demand. There are nearly 3.5 million applicants currently awaiting numerically controlled visas, sufficient to fill more than eight years’ workload at the current annual caps. It is reasonable to expect that the immigrant visa workload for FY 2010 and FY 2011 will remain about the same as FY 2009. Please note that these estimates do not take into account variables that the Department cannot predict at this time, such as legislative changes.

With regard to passports, the Department does not believe that passport application fees are a significant determining factor when Americans decide to travel internationally. The price of a passport book or card remains minor in comparison with other costs associated with foreign travel, given that taxes and surcharges alone on an international airfare can easily surpass $100. As a result, the Department does not believe passport demand will be significantly affected by increases of the size proposed. In addition, the Western Hemisphere Travel Initiative has now been fully implemented, and there is no new regulatory impetus for passport demand on the horizon.

Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, Federalism, Aug. 4, 1999, the Department has determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. 64 FR 43255.

Paperwork Reduction Act

This rule does not impose or alter any reporting or record-keeping requirements.

List of Subjects in 22 CFR Parts 22 and 51

Consular services, fees, passports and visas.

Accordingly, for the reasons stated in the preamble, 22 CFR Part 22 and Part 51 are proposed to be amended as follows:

PART 22–SCHEDULE OF FEES FOR CONSULAR SERVICES–DEPARTMENT OF STATE AND FOREIGN SERVICE

The following table sets forth the U.S. Department of State’s Schedule of Fees for Consular Services:

Schedule of Fees for Consular Services

(SEE PDF VERSION FOR TABLE)

PART 51–PASSPORTS

3. In Sec. 51.51, revise paragraph (d) to read as follows:

Sec. 51.51 Passport fees

* * * * *

(d) A surcharge in the amount of twenty-two dollars ($22) on the filing of each application for a passport book, in the amount of twenty-two dollars ($22) on the filing of each application for a passport card for an applicant age 16 or over, and in the amount of fifteen dollars ($15) on the filing of each application for a passport card for an applicant under age 16, in order to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (8 U.S.C. 1185 note). The surcharge will be recovered by the Department of State from within the passport application fee reflected in the Schedule of Fees for Consular Services.

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